“In a 1928 speech, Hitler stated that Americans had “gunned down the millions of Redskins to a few hundred thousand, and now keep the modest remnant under observation in a cage …” Other scholars agree that for ‘generations of German imperialists, and for Hitler himself, the exemplary land empire was the United States of America.’
It is intriguing, yet profoundly disturbing, that American Indian law played a role in the Nazi formulation of Jewish policies and laws says Robert J. Miller
Most Americans would probably be shocked to learn that in the early 1930s Nazi scholars, lawyers, and officials were heavily influenced by United States law when they were developing policies and laws concerning Jewish people. Most Americans would also no doubt be surprised to discover that when Nazis were turning their racist ideas into legislative proposals and laws they were carefully studying federal Indian laws and American state laws that discriminated against American Indians.
A 2017 book by a Yale law professor, James Q. Whitman, Hitler’s American Model: The United States and the Making of Nazi Race Law lays out a convincing argument that Nazis studied in minute detail American federal and state laws that discriminated against African-American, Chinese, Japanese, Filipino, Puerto Rican, and other racial groups in the United States. Whitman, however, only mentions Native Americans on eleven pages in his book according to the book’s index.
In this article, I am undertaking the first step of what I anticipate will be a much larger study on how, and how extensively, federal and state laws and policies regarding American Indians influenced Nazi scholars, lawyers, and officials in formulating and enacting Nazi laws.
According to Professor Whitman, the Nazi laws that best exemplify its racist goals and tactics versus Jews were the Nuremberg Laws that were enacted and announced in September 1935. These laws established two important principles. First, the Reich Citizenship Law created a distinction between Reich citizens and mere German nationals. Under this law, Jewish people became nationals with restricted political rights and were not German citizens. Second, the Blood Law criminalized marriage and sexual relations between Jews and Germans.
Whitman proves that for years building up to the 1935 Nuremberg Laws that Nazi lawyers, jurists, scholars, and officials were studying and writing research materials, articles, and books on United States immigration laws from the very first one in 1790, through the 1870s, 1880s, 1917, 1921, and 1924. Nazis also studied U.S. state and federal laws that allowed racial discrimination and limits on the citizenship rights of minorities. The Nazis were especially interested in American anti-miscegenation laws (bans on inter-racial marriage). Such bans existed in North America as early as 1664 in Maryland, in 1691 in Virginia, and right up to the early 1930s when the Nazis were studying them. In fact, Nazi scholars expressly cited the statutes of thirty American states that banned inter-racial marriages in the early 1930s, as well as many other aspects of U.S. race law: Heinrich Krieger, Das Rassenrecht in den Vereigten Staaten, in Verwaltungsarchiv (1934); Heinrich Krieger, Das Rassenrecht in den Vereigten Staaten (Race Law in the United States) (1936); Johann von Leers, Blut und Rasse in der Gesetzgebung. Ein Gang durch die Volkergeschichte (Blood and Race: A Tour through the History of Peoples) (1936); and Herbert Kier, Volk, Rasse und Staat, in Nationalsozialistisches Handbuch fur Recht und Gesetzgebung (1935).
Nazis and Indians
The Nazis’ interest in the United States policies and laws regarding American Indians originated with Adolf Hitler himself. In his book Mein Kampf, Hitler discussed U.S. laws and policies and noted that the United States was a racial model for Europe and that it was “the one state” in the world that was creating the kind of racist society that the Nazi regime wanted to establish. In a 1928 speech, Hitler stated that Americans had “gunned down the millions of Redskins to a few hundred thousand, and now keep the modest remnant under observation in a cage …” Other scholars agree that for “generations of German imperialists, and for Hitler himself, the exemplary land empire was the United States of America.”
Interestingly, the German word lebensraum (living space) became a Nazi rallying cry that demanded more land in Eastern Europe for German expansion and Germany’s growing population. This Nazi policy clearly evokes the American motto of Manifest Destiny that led to military actions, massacres, and official federal policies and laws to remove Indians from the path of American expansion. American Manifest Destiny led to attempted extermination of Indians, to Indian nations and Indians being confined to reservations, and to federal policies to allot and confiscate many of those reservations, and to terminate Indian nations political status.
Following Hitler’s lead, Nazi scholars, officials, jurists, and lawyers also delved deeply into United States Indian law when developing the 1935 Nuremberg Laws. The most important meeting in the process of drafting and enacting those Laws was held on June 5, 1934. At this meeting, the seventeen attendees reviewed extensive research materials that analyzed United States law and American states’ laws. Along with other Nazi scholarship, the materials presented at this meeting specifically highlighted and cited the laws of thirty U.S. states that criminalized or civilly nullified inter-racial marriages. Significantly, seven of those thirty state statutes also expressly outlawed white Americans from marrying Indians.
Other Nazi scholarly research also highlighted U.S. and state laws that treated Indians differently than other American citizens. The Nazis were very interested in how the United States had gotten away with discriminating against Indians for several centuries based on race and bloodlines. Consequently, it appears irrefutable that Nazi officials, jurists, and lawyers were influenced when developing the Nuremberg Laws, at least partially, by American Indian laws and policies.
“Heinrich Krieger … was the single most important figure in the Nazi assimilation of American race law …” James Q. Whitman, Hitler’s American Model: The United States and the Making of Nazi Race Law.
A review of Heinrich Krieger’s career adds significantly to the thesis that Nazi scholars and officials were heavily influenced by United States Indian law.
Krieger was a crucial actor in the process of Nazis studying and adopting American racial policies and Indian laws. Krieger researched and drafted the most important materials that German officials, jurists, attorneys, and scholars used to debate and formalize the legislative proposals and strategies for the Nuremberg Laws. For example, Krieger’s research, written materials, and conclusions were no doubt incorporated into the conference materials distributed to the seventeen attendees, and discussed at length, at the crucial June 5, 1934 meeting. The attendees of this meeting were provided with Krieger’s and other scholars research on American laws that discriminated against minorities and Indians. In fact, Krieger published his research and findings on American racial laws contemporaneously with the June 1934 Nuremberg Laws meeting in his 1934 article, Race Law in the United States. He later developed and expanded his arguments further in his 1936 book of the same name.
Most importantly for my argument, Krieger was intimately familiar with American Indian Law. He published a twenty-nine pagelaw review article on Indian law in March 1935, Principles of Indian Law and the Act of June 18, 1934. He researched and wrote this article during 1933–34 when he was an exchange student at the University of Arkansas Law School and while he was also conducting research at the Library of Congress to publish his dissertation on “American Racial Law.” It is beyond belief that he would not have included his findings on Indian law in the materials he provided to Nazi officials for the June 1934 meeting when they discussed and planned what became the Nuremberg Laws.
In his law review article, Krieger discussed a wide array of issues regarding American Indians’ U.S. citizenship and their rights, the discriminatory treatment of Indians and Indian nations by the United States, and myriad federal Indian laws and policies. After all this research and analysis, he concluded that United States Indian law was racial law, and that the United States discriminated against and treated Indians and Indian nations differently from other American citizens based on their alleged racial differences from white Americans. (“the Indian law is exactly what its name indicates: a racial law; and there is no way out of the extra-constitutional situation …” Emphasis in original.) Krieger also concluded: “The proper nature of the tribal Indians’ status is that of a racial group placed under a special police power of the United States.” It appears certain that what Krieger learned from his intensive study of federal Indian law and the state laws that discriminated against Indians, and what he emphasized to Nazi officials, was that the United States discriminated against its Indian citizens because of their race and had always done so. Thus, he concluded that Nazi Germany should be justified in doing the same against German Jews.
How intriguing, yet at the same time how profoundly disturbing, that American Indian law played a role in the Nazi formulation of Jewish policies and laws. Further research will hopefully reveal just how large a role United States Indian laws and policies played in that disturbing chapter of world history.
Robert J. Miller, Eastern Shawnee Tribe of Oklahoma, is Professor Sandra Day O’Connor College of Law at Arizona State University.